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United States v. Banks

United States District Court, D. Colorado

July 13, 2015

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
TORREY V. BANKS, Defendant-Movant. Criminal Action No. 1:02-cr-00109-WYD-1

ORDER OF DISMISSAL

WILEY Y. DANIEL, SENIOR UNITED STATES DISTRICT JUDGE

Movant, Torrey V. Banks, has filed, pro se, a Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255(a). The Court must construe Mr. Banks’ filings liberally because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons discussed below, the § 2255 motion should be dismissed as time-barred and/or because the issues raised are not properly brought in a § 2255 motion.

I. Procedural History

On December 19, 2002, following the entry of guilty plea, Mr. Banks was sentenced in this Court to seventy-four (74) months imprisonment followed by three years of supervised release. After he was released from custody, his term of supervised release commenced on July 11, 2008 (ECF No. 43, p. 2). On July 8, 2009, the Probation Office filed a Petition for Issuance of Arrest Warrant Due to Violations of Supervised Release.

Pursuant to a warrant issued by this Court, Mr. Banks was arrested on July 16, 2009. On December 7, 2009, a supervised release revocation hearing was held during which Mr. Banks admitted to the violations. The Court revoked Mr. Banks’ supervised release based on his admissions and, as a result, he was sentenced to eleven months imprisonment followed by supervised release for a period of twenty-five months. Judgment of the sentence was entered on December 17, 2009 (ECF No. 62).

Mr. Banks was released from BOP custody on May 14, 2010. On December 16, 2011, and June 13, 2012, respectively, warrants were issued against Mr. Banks alleging ten violations of his supervised release. Two of the violations alleged violations of the law for the defendant’s convictions in Arapahoe County Court Case Numbers 09CR2558 and 09CR1731. On October 29, 2012, a supervised release revocation hearing was held during which Mr. Banks partially admitted to the criminal charge violations from Arapahoe County and admitted to the remainder of the violations. As a result, the Court revoked Mr. Banks’ supervised release and sentenced him to thirteen months imprisonment to run consecutive to the Arapahoe County cases. Judgment of the sentence was entered on November 19, 2012 (ECF No. 94).

On May 15, 2015, Defendant's Arapahoe County cases were dismissed. On June 1, 2015, Mr. Banks filed a Motion to Stay or Modify his revocation sentence (ECF No. 95), wherein he argues that his thirteen-month sentence should be modified because the criminal convictions were dismissed. On June 10, 2015, the U.S. Probation Office filed a Response to Defendant's Motion (ECF No. 97) wherein it advised that Banks should receive BOP credit for the time he served in custody in Arapahoe County because the revocation sentence was imposed to run consecutive to the Arapahoe County Court cases.

The United States filed its Response on June 17, 2015, wherein it joined with the Probation Office agreeing that the Court should enter an Order modifying the sentence to reflect that it no longer is a consecutive sentence and direct BOP to give him credit for time served against the 13 months sentence. On June 22, 2015, the Court entered an Amended Judgment of sentence (ECF No. 100).

On June 17, 2015, Banks filed the pending Motion to Vacate, Set Aside or Correct Sentence pursuant to 18 U.S.C. § 2255 Motion (ECF No. 99) wherein he seeks immediate release from state custody into BOP custody.

II. Timeliness

Mr. Banks’ Motion to Vacate Judgment of Sentence appears to be time-barred. In this regard, pursuant to 28 U.S.C. § 2255, a one-year limitation period applies to motions to vacate, set aside, or correct a federal sentence.

The limitation period shall run from the latest of–
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented ...

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